Imagine this scenario: You find yourself in a whirlwind of trouble, accused and arrested for a crime. Your life is thrown into chaos, and as you stand in court, it only takes 30 seconds to decide the fate of your freedom. Suddenly, your wallet becomes the key to your liberation. If you’re lucky enough to have a stable job or come from an affluent background, buying your way out is a minor inconvenience. But if you live paycheck to paycheck, like 60% of the population: the lack of money could mean that the cell door slams shut, leaving you in a cage. It is a system that seems to imprison those who cannot buy their way to freedom.
Now, let’s fast forward to a different scenario. After being arrested for the same crime, a preliminary risk assessment is conducted before you even set foot in court. If the assessment deems you to be low risk, you will be released as long as you stay out of trouble and show up for your court hearing. Return to work, family and the chance to get your life back in order. If you are deemed high risk, a full court hearing awaits you. This time you can’t just buy your way out. If you pose a threat to public safety or are a flight risk, you risk jail time, ankle monitoring, or supervision.
This is what emerged with the implementation of Preliminary Equity Act in Illinois. What was once a system driven by wealth and privilege has shifted its focus to public safety, fairness and the preservation of liberty until guilt is proven.
Despite its existence for only two months, critics have wasted no time seizing on cases where released defendants exhibited high-risk behavior or committed new crimes. However, similar cases also occurred under the old system. The bail system, in any form, is inherently flawed, teetering on the delicate balance between personal liberty and public safety, lacking infallibility.
In fact, many individuals released under the current cashless bail system would have been free under the previous one. This was highlighted recently in a Madison County case with violent charges. Instead, it appears that most violent offenders are now detained with no possibility of release, in contrast to the previous system in which many could buy their freedom by paying high bail without regard for the potential community. For example, in Cook County, approximately 90% of detention requests for murder, attempted murder and carjacking resulted in detention. Those most affected by the new system are often low-risk, nonviolent individuals facing financial hardship. Now they can await their day in court without feeling pressured to plead guilty just to get their release.
Managing a fragile balance
Pretrial justice is key to upholding accountability and ensuring public safety. He has the burden of making challenging decisions and maintaining the fragile balance between the rights of defendants and the protection of our communities. Those unfamiliar with the criminal justice system may not understand all of its complexities or appreciate the success stories when the process goes well. But prosecutors have a duty to seek the truth, and this can lead to dismissal or early release from trial, often due to lack of evidence. Courts should only deprive someone of liberty if there is a real risk of flight or a substantial threat to public safety, meaning detention should only be used as a last resort and will often not be an option for low-level crimes. And when someone is arrested while under probation or parole supervision, other protections are in place to detain the defendant, so pretrial detention is not necessary.
The Illinois Pretrial Fairness Act aims to address these disparities and promote a more equitable pretrial system. Establishes a presumption of release for nonviolent offenders and provides alternatives to cash bail for those who have been detained. Ultimately, the law should create a more just, safe and equitable system for all.
So which system do you prefer? One based on public safety or the size of a person’s bank account?
Lisel Petis is a former prosecutor and victim advocate and senior fellow in residence for criminal justice and civil liberties at the R Street Institute.
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